The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-04-08
HABEAS CORPUS.
The Constitutional Issue EVaded Ina
the Opium Case.

Argument in the habeas corpus case of
Manuel. Brito, convicted in the Police
Court of having opium unlawfully III pos
session under section of the Opium Act,
1886, was heard before the Supreme Court
in banco yesterday. Mr.. Kinney appeared
to sustain the writ, and Mr. Hatch repre-
scented the Marshal.
Mr.. Kinney stated the points upon
which he relied to sustain the writ, travel
ing over almost the ground covered by
his argument before Mr.. Justice Preston,
at chambers March 29th, and fully re-
ported in the ADVERTISER of the Both
ultimo. His client was unlawfully de-
prived of his liberty inasmuch as the pen
atty provided for by section of the Act,
which penalty had been imposed upon his
client, was applicable only to the licensee.
Section specifies what the holder of the
license shall do; and section enacts that
if any person acts contrary to the pro-
visions Of section 3 certain penalties shall
follow. No person, however, other than
the licensee could violate section 3, there
fore the penalty under section could not
lawfully apply to any other person His
client did not hold the opium license, and
therefore could not be convicted OF having
opium in possession contrary to the pro-
visions of section 4. This was penal
statute and should be strictly construed.
1t was not the function of the COu.tto put an
Interpretation on statute other than that
which its words conveyed. If 1t be mop
erative, in whole or in part, by reason OF
it's contradictions and other defects the
Court could not make it operative. Coun-
sci cited cases at considerable length in
support of this proposition, but proceeded
to say that he did not wish to attack the
law as a whole. He knew that there were
large property interests in the license, and
he did not seek to assail the law any fur
Their than as far as the interests of his own
client were concerned. He then criticised
the statute more at large, and argued that
there was nothing to prevent Japanese and
native Hawaiians from using opium pro-
vided they obtained a medical certlhcate
The intention of the Legislature had been
to prohibit the sale of opium to japanese
and Hawaiians, but it had not done SO,
and the Court could not in such
case act upon its belief of what the
intention of the Legislature was, but upon
what it had declared by specific enactment.
This was one of the various defects in the
law. His contention, however, was that
there was no penalty provided by the
statute for the Offense of which his client
had been convicted. He was unlawfully
detained in custody and was entitled to his
discharge.
Mr.. Justice McCully called attention to
the latter part of section 4, which reads,
"or who shall furnish any opium or pre-
paration of opium to any person or per-
sons contrary to law" Where is this
law?
Mr.. Kinney replied that he did not
know. 1t was a question whether section
IL repealed chapter 56 of the laws of 1874,
as amended in 1876 and 1880, should the
Court hold that the law is wholly inOpera-
tive He did not make that point, how
ever. but confined himself solely to the ar
gument in favor of his client arising from
the natural construction OF sections
and 4.
Mr.. Hatch replied very briefly, and con-
tended that the language and intent of the
statute were clear enough. 1t was not
necessary to follow counsel through the
cases cited by him as these were not apple
able The possession of opium without a
license or medical certificate authorizing
it's use was an offense under the statute for
which certain penalties were provided. In
this case a conviction was had in the Police
Court for that offense, and the minimum
penalty had been imposed This law was
primarily enacted for revenue purposes
and therefore being fiscal measure, the
strict rule of construction in purely penal
statutes was not applicable.
The Chief Justice: This case will be
taken under consideration.
Senior A. de Souza Canavarro, Portu-
guese Commissioner, was present during
| the proceedings